Coogler v. Rhodes

• Decision Date: 04 January 1897
• Citation: 21 So. 109,38 Fla. 240
• Parties: COOGLER v. RHODES.
• Court: Florida Supreme Court

21 So. 109

38 Fla. 240

COOGLER v. RHODES.

Florida Supreme Court

January 4, 1897

Error to circuit court, Hernando county; G. B. Sparkman, Judge.

Action by Napoleon B. Rhodes against Theodore S. Coogler for libel. From a judgment for plaintiff, defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. A leading question has been defined as one which may be answered 'Yes' or 'No.' This is not the most usual definition, or the one most exactly fixing the meaning of the term. The proper signification of the expression is a suggestive question,--one which suggests or puts the desired answer into the mouth of the witness.

2. A question addressed to a witness in examination is not necessarily leading because it can be answered 'Yes' or 'No.' A leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative.

3. An interrogatory which merely asks a witness if he has any knowledge as to a fact which is in issue between the parties and directs him, if he has such knowledge, to state the extent of the same, is not objectionable upon the ground of being a leading question.

4. The great primary object in the examination of witnesses is to make known the truth of the matters in controversy. Great nicety upon the subject of leading questions is not conducive to this object, or to convenience in examination, or to the administration of justice.

5. In an action of libel, evidence tending to show good ground for suspicion of the truth of the matters alleged to be false is material for the defendant under a plea of not guilty, not to prove the truth of the charge, but as tending to show a less degree of malice, and in mitigation of the damages to which plaintiff is entitled. Such evidence is also material, under a plea of privileged communication, as a circumstance to be considered by the jury as to whether the alleged libelous language was published through the express malice of the defendant.

6. In actions of libel, those publications which are considered privileged are divided into two classes: absolutely privileged, and conditionally or qualifiedly privileged.

7. A definition of a qualifiedly privileged communication especially applicable to the facts of the present case, is as follows: Where a person is so situated that it becomes right in the interest of society, that he should tell to a third person certain facts, then, if he bona fide, and without malice, does tell them, it is a privileged communication.

8. In the case of a qualifiedly privileged publication, if the matter is stated in accordance with the above definition with good motives, and upon reasons apparently good, the publisher will not be liable if the matter stated should turn out to be untrue.

9. In cases of qualifiedly privileged publication, the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail. The burden of proof is changed, and, in order for the plaintiff to recover, he is called upon affirmatively and expressly to show malice in the publisher. This malice may be inferred from the language itself, or may be proven by extrinsic circumstances. While the malice may be inferred from the publication itself, it is not inferable from the mere fact that the statements are untrue. The existence or nonexistence of such malice, where the facts are controverted, is a question of fact for a jury.

10. That which would otherwise be a qualifiedly privileged publication is not so if the publisher is actuated by malice.

11. A letter from an elector of this state to the governor thereof, in reference to the character and qualifications of an applicant to said governor to be appointed sheriff of the county in which such elector resides, is not an absolutely privileged, but is a qualifiedly or conditionally privileged, publication. The publisher of such a letter cannot, under the guise of such a communication, falsely and maliciously traduce and slander the moral character of such applicant; and, if he does so, he makes himself liable to an action therefor. On the other hand, such applicant cannot recover damages for any statements in such publication, unless the same were both false and malicious.

12. In such cases of privileged publication as are described in the preceding headnote, although the alleged libelous matter cannot be shown to be true by the publisher, yet, if there was reasonable ground for him to suppose it to be true, and it was published by him in good faith, under an honest belief that it was true in statements of fact and in comment thereon, and was published with motives for the public good, without any private personal malice towards the plaintiff, the publisher is not liable to damages therefor.

COUNSEL

Angus Patterson, for plaintiff in error.

Carter & Wall, for defendant in error.

OPINION

LIDDON J.

During the month of May, 1890, there was a vacancy in the office of sheriff of Hernando county. The Honorable Francis P. Fleming, then governor of the state of Florida, had appointed the defendant in error to fill said vacancy, but the commission upon such appointment had not been issued and delivered. The plaintiff in error, being a citizen and elector of this state, resident in said county, and opposed in sentiment to the issuing of such commission, sent a letter to the governor upon the subject. The plaintiff in error, hereinafter called the defendant, in such letter used the following language of the defendant in error, hereinafter called the plaintiff, viz.: '* * * It is a notorious fact that for years he has run the only house of prostitution here, and his mistress has been indicted in our courts.' The plaintiff, by his amended declaration, brought his action for libel against the defendant on account of the words above quoted, alleging that they were falsely and maliciously written and published of the plaintiff. No special damage was alleged in the declaration. The defendant filed six pleas. The second, third, and fourth were stricken out upon motion. Issue was joined and trial had upon the first, fifth, and sixth pleas. The first plea was 'Not guilty.' The fifth, in substance, admitted the publishing of the alleged libelous language, but stated that it was written without malice towards the plaintiff, and was a privileged communication, upon which the action could not be maintained. The sixth plea admitted publishing the alleged libelous language, but pleaded justification, in that the same was published without malice to the plaintiff, with good motives, and the same was wholly true.

No question of the inconsistency of these pleas with each other was raised in the court below or in this court. Therefore, in this opinion, in considering questions of admissibility of evidence, we have considered the same with reference to all or either of the pleas upon which issue was joined and trial had.

The errors assigned and argued involve the correctness of the ruling of the court in excluding certain evidence offered by the defendant, and the general question whether the communication containing the alleged libelous matter was not a privileged publication for which no action would lie. One of the rulings excluding testimony complained of was in relation to the depositions of one W. D. Sims, a witness for defendant, taken upon commission in the state of Alabama. The following written interrogatory was addressed to this witness: 'Inter. 4. State whether or not you know that said Napoleon B. Rhodes ran a house of prostitution in the town of Brooksville, Hernando county, state of Florida; and if yes, when, and for how long a time.' The answer was to the effect that the witness did not know positively as to the matter inquired about, but that it was generally supposed that the plaintiff was concerned in the management of such house of prostitution. The objection upon which the question was excluded was that it was leading. In what respect it was claimed to be leading is not specified. Among other definitions, a leading question has been defined as one which may be answered 'Yes' or 'No.' This, however, is not the most usual definition, or the one most exactly fixing the meaning of the term. The proper signification of the expression is a suggestive question,--one which suggests or puts the desired answer into the mouth of the witness. It has also been said that a question which assumes the existence of material facts which have not been proven is leading. 1 Thomp. Trials, § 358, and authorities cited in notes to the text; Rap. & L. Law Dict. tit. 'Leading Question'; And. Law Dict. tit. 'Question,' subtit. 'Leading Question'; People v. Mather, 4 Wend. 229; 1 Greenl. Ev. § 434. We agree with the supreme court of Michigan, that a question is not necessarily objectionable as leading because it can be answered 'Yes' or 'No,' and that a leading question is one that points out the desired answer, and not merely one that calls for a simple affirmative or negative. McKeown v. Harvey, 40 Mich. 226. The case of Harvey v. Osborn, 55 Ind. 535, is also to similar effect as the Michigan case. Tested by the above definitions, the question excluded was not a leading question. The whole inquiry is not one which could be answered by a simple 'Yes' or 'No.' Neither does it suggest to the witness or put the desired answer in his mouth, making the witness a mere echo of the matters asserted by the counsel conducting the examination. While it is perhaps not in as good shape as it should have been, and if it had been propounded upon an oral examination in open court, instead of being prepared in writing for the taking of depositions, upon suggestion of the court might have been made more correct and formal, yet we do...